Oregon Order on Personal Jurisdiction 00091630

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ROCKY BIXBY, LAWRENCE ROBERTA,SCOTT ASHBY, CHARLES ELLIS, MATTHEWHADLEY, CARLOS AVALOS, JESUS BRUNO,COLT CAMPREDON, STEPHEN FOSTER, BYRONGREER, KELLY HAFER, DENNIS JEWELL,STEPHEN MUELLER, VITO PACHECO, JOHNRYDQUIST, KEVIN STANGER, RONALDBJERKLUND, ADANROLANDO GARCIA, BRIANHEDIN, LEWIS MARTIN, and CHARLES SEAMON,

Plaintiffs,CV 09-632-PK

FileD

12

v.

KBR, INC., KELLOGG, BROWN & ROOT SERVICE,INC., KBR TECHNICAL SERVICES, INC., .OVERSEAS ADMINISTRATION SERVICES, LTD.,and SERVICE EMPLOYEES INTERNATIONAL, INC.,

Defendants.

PAPAK, Magistrate Judge:

OPINION ANDORDER

Plaintiffs Rocky Bixby, Lawrence Roberta, Scott Ashby, Charles Ellis, and Matthew

Hadley filed this action against defendants KBR, Inc., Kellogg, Brown & Root Service, Inc.,

KBR Technical Services, Inc., Overseas Administration Services, Ltd., and Service Employees

International, Inc., on June 8, 2009. On September 8, 2009, plaintiffs amended their complaint,

Page I - FINDINGS AND RECOMMENDATION AND ORDER

Case 3:09-cv-00632-PK Document 44 Filed 04/12/2010 Page 1 of 18

adding Carlos Avalos, Jesus Bruno, Colt Campredon, Stephen Foster, Byron Greer, Kelly Hafer,

Detmis Jewell, Stephen Mueller, Vito Pacheco, John Rydquist, and Kevin Stanger as additional

plaintiffs. Plaintiffs amended their pleading a second time on February 2, 2010, adding Ronald

Bjerklund, Adamolando Garcia, Brian Hedin, Lewis Martin, and Charles Seamon as additional

plaintiffs. In their second amended complaint, plaintiffs allege defendants' liability for

negligence and for fraud arising out ofplaintiffs' exposure to hexavalent chromium and

subsequent hexavalent chromium poisoning while stationed as Oregon National Guardsmen in

Iraq and assigned to duty at the Qannat Ali water plant at defendants' behest in 2003.

Now before the court is defendants' motion (#21) to dismiss for lack of personal

jurisdiction and alternate motion to transfer for lack of venue. I have considered the motion, oral

argument on behalf of the parties, and all of the pleadings on file. For the reasons set forth

below, the motion is denied in its entirety.

LEGAL STANDARDS

A motion to dismiss for lack of personal jurisdiction is governed by Federal Civil

Procedure Rule 12(b)(2). See Fed. R. Civ. P. 12(b)(2). "In opposition to a defendant's motion to

dismiss for lack ofpersonal jurisdiction, the plaintiff bears the burden of establishing that

jurisdiction is proper." Boschetto 1'. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008), citing Sher v.

Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). In evaluating the defendant's motion, "[t]he court

may consider evidence presented in affidavits to assist it in its determination and may order

discovery on the jurisdictional issues." Doe v. Unocal COl]}., 248 F.3d 915, 922 (9th Cir. 2001),

citing Data Disc, Inc. v. Systems Technology Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977).

If the court decides the motion based on the pleadings and affidavits submitted by the parties

Page 2 - FINDINGS AND RECOMMENDATION AND ORDER


without conducting an evidentiary hearing, "the plaintiff need make only a piimafacie showing

ofjurisdictional facts to withstand the motion to dismiss." Id, quoting Ballard v. Savage, 65

F.3d 1495, 1498 (9th Cil'. 1995). The court accepts uncontroverted allegations contained within

the plaintiffs complaint as true, and resolves conflicts between statements contained within the

parties' affidavits in the plaintiffs favor. See, e.g., Boschetto, 539 F.3d at 1015 (citations

omitted).

FACTUAL BACKGROUND

I. The Defendants and their Contacts with Oregon

A. KBR,Inc.

KBR, Inc. ("KBR"), is a corporation organized under the laws of the State of Delaware

with its principal place of business in Houston, Texas. KBR is the corporate parent of defendants

Kellogg Brown & Root Services, Inc., KBR Teclmical Services, Inc., Overseas Administration

Services, Ltd., and Service Employees International, Inc.

KBR is not registered to do business in Oregon, maintains no offices or other facilities in

Oregon, has no mailing address in Oregon, and has no direct employees. KBR owns no Oregon

property, pays no Oregon taxes, and maintains no Oregon bank accounts. KBR does not solicit

business in Oregon, direct business activities toward Oregon residents, or advertise in Oregon

(although one of its subsidiaries, KBR Technical Services, Inc., has done so, as discussed below).

KBR has an agent for service of process in Oregon. In addition, KBR maintains a

workers' compensation insurance policy in Oregon. That policy is part of a multi-state insurance

policy that KBR purchased for the employees of certain of its subsidiaries, and includes coverage

Page 3 - FINDINGS AND RECOMMENDAnON AND ORDER


in Oregon and forty-two other states.

B. Kellogg Brown & Root Services, Inc.

Kellogg Brown & Root Services, Inc. ("KB&RS"), is a corporation organized under the

laws of the State of Delaware with its principal place of business in Houston, Texas. KB&RS is

the operating company and contracting entity for KBR's Government and Infrastructure business

unit, which is an engineering, construction, and services contractor for public sector and

private clients. In connection with the events discussed in the plaintiffs' complaint, KB&RS

directly contracted with the United States Government to provide logistical support to the

military in the Middle East.

KB&RS does not currently perform work in Oregon, nor does it have contracts to

perform work in Oregon. KB&RS maintains no offices or other facilities in Oregon, has no

mailing address in Oregon, and has no employees working in Oregon. KB&RS does not solicit

business in Oregon, direct business activities toward Oregon residents, or advertise in

Oregon. It owns no Oregon property, pays no Oregon taxes, and maintains no Oregon

bank accounts.

KB&RS is registered to do business in Oregon, and it has an agent for service of process

in Oregon.

C. KBR Technical Serviccs, Inc.

KBR Technical Services, Inc. ("KBRTS"), is a corporation organized under the laws of

the State of Delaware with its principal place of business in Houston, Texas. KBRTS is an

employment company that hires individuals who perform work domestically and abroad for

KBR-related companies.



KBRTS is not registered to do business in Oregon, maintains no offices or other facilities

in Oregon, has no mailing address in Oregon, and has no employees in Oregon. KBRTS does not

solicit business in Oregon, direct business activities toward Oregon residents, or advertise in

Oregon. It owns no Oregon property and maintains no Oregon bank accounts.

KBRTS currently employs approximately 5,800 employees, and since its formation has

employed approximately 40 persons who listed themselves as Oregon residents. However, it

appears that none of these Oregon residents were ever employed by KBRTS 01' any other KBR

related entity in Oregon.

KBRTS submits tax withholdings on behalf of its current employees who list permanent

addresses in Oregon. Other than that, KBRTS does not incur tax liability or pay taxes in the

State of Oregon. KBRTS has an agent for service ofprocess in Oregon.

In deposition, KBRTS' vice-president of litigation, Mark Lowes, testified that KBRTS

has made recruiting trips to Oregon, and that KBRTS employs "thousands" of employees with

Oregon permanent addresses. However, following the close ofhis deposition, Lowes submitted

a list of "errata" in which he characterized his testimony as enoneous on both of these points.

According to Lowes' enata submission, document notations he interpreted as meaning that

recruiters traveled to Oregon actually meant that candidates had traveled to Houstonji'om

Oregon. Moreover, in his errata submission Lowes indicated that he had erroneously combined

job applicants and employees when stating that "thousands" ofKBRTS employees had Oregon

addresses.

In connection with a marketing initiative, KBRTS once approached the Oregon National

Guard regarding a potential business arrangement, in the course of which KBRTS representatives



traveled to Oregon for at least one meeting. It appears that the initiative was ultimately

unsllccessfhl and that the business arrangement never came into being. There is no evidence that

KBR or any other KBR subsidiary was directly involved in this marketing initiative. It does not

appear that KBRTS ever otherwise sought to do business in Oregon.

D. Overseas Administration Sel"Vices, Ltd.

Overseas Administration Services, Ltd. ("OAS"), is a corporation organized under the

laws of the Cayman Islands with its principal place of business in Dubai, United Arab Emirates.

OAS is an employment company that hires employees who perform work abroad under contracts

awarded by various clients to KBR-related companies. OAS currently employs approximately

1,000 persons, none in Oregon. Since its formation, OAS has hired 16 persons who listed

Oregon as a permanent address. OAS has withheld federal but not state taxes on these persons'

behalf, none of whom worked in Oregon.

OAS is not registered to do business in Oregon, and has no agent for service of process in

Oregon. OAS maintains no offices or other facilities in Oregon or anywhere else in the United

States, has no mailing address in Oregon, and has no employees working in Oregon. OAS does

not solicit business in Oregon, direct business activities toward Oregon residents, or advertise in

Oregon. It owns no Oregon property, pays no Oregon taxes, and maintains no Oregon bank

accounts.

E. Service Employees Intematiollal, Inc.

Service Employees International, Inc. ("SEI"), is a corporation organized under the laws

ofthe Cayman Islands with its principal place of business in Dllbai, United Arab Emirates. SEI

is an employment company that hires employees who perform work abroad under contracts



awarded by various clients to KBR-related companies. SET currently employs approximately

25,000 persons, none in Oregon. Since its formation, SET has hired approximately 430 persons

who listed Oregon as a permanent address, although none of these ever worked for SET in

Oregon. SEI has withheld federal but not state taxes on these persons' behalf.

SET is not registered to do business in Oregon, and has no agent for service of process in

Oregon. SET maintains no offices or other facilities in Oregon or anywhere else in the United

States, has no mailing address in Oregon, and has no employees working in Oregon. SET does

not solicit business in Oregon, direct business activities toward Oregon residents, or advertise in

Oregon. It owns no Oregon property, pays no Oregon taxes, and maintains no Oregon bank

accounts.

II. Underlying Facts

The KBR defendants were performing work in southern Traq in connection with various

government contracts in 2003. At that time, the Oregon National Guard was assigned to the

Doha Operations Center in Kuwait, and was the only military force assigned to that location. At

material times the KBR defendants, or some of them, would contact the Doha Operations Center

to request assistance with security issues on a regular, perhaps daily basis, with the knowledge

that in response to their security requests, members of the Oregon National Guard would be

dispatched. When members of the Oregon National Guard were assigned to security teams in

response to requests by KBR defendants, they would routinely identify themselves as members of

the Oregon National Guard.

On some occasions, members of the Oregon National Guard, including the plaintiffs in

this action, would receive security assignments to the Qarmat Ali water plant. The plant pumped



water into oil wells in connection with oil harvesting operations. The KBR defendants, or some

of them, took control of the plant after combat operations ceased in the area.

According to the plaintiffs' allegations, the Qarmat Ali plant was contaminated with

sodium dichromate, which contains high levels of hexavalent chromium, a toxic carcinogen.

Plaintiffs allege that the KBR defendants were at all material times aware of the contamination

and of the danger to persons exposed to it. Plaintiffs allege that some of the soldiers assigned to

duty at the plant experienced characteristic effects of hexavalent chromium poisoning, including

bleeding from the nose, but were advised by KBR defendants that their symptoms were caused

by dry desert air or by sand allergies.

Plaintiffs allege that, during 2008 Congressional hearings, it was revealed that KBR was

wholly aware of the dangers ofhexavalent chromium poisoning at the plant at all material times,

and actively concealed the extent ofthe Oregon National Guard soldiers' exposure to it.

Plaintiffs have all subsequently experienced symptoms characteristic of acute hexavalent

chromium poisoning.

ANALYSIS

Before the court is the KBR defendants' challenge to the court's exercise ofpersonal

jurisdiction over each of the defendants. In the alternative, defendants move to transfer for lack

of venue in this district.

I. Motion to Dismiss for Lack of Pel'sonal Jurisdiction

"When no federal statute governs personal jurisdiction, the district court applies the law

of the forum state." Id., citing Panavision Int'[ L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.

1998). Oregon's long-arm statute creates a standard co-extensive with federal jurisdictional



standards, see Or. R. Civ. P. 4L, so a federal court sitting in the District of Oregon may exercise

personal jurisdiction wherever it is possible to do so within the limits offederal constitutional

due process, see, e.g., Gray & Co. v. Firstenberg Mach. Co., 913 F.2d 758, 760 (9th Cir. 1990).

Federal due process jurisprudence requires that, to be subject to the personal jurisdiction

of a federal court, a nomesident defendant must have at least "'minimum contacts'" with the

court's forum state such that "the exercise ofjurisdiction 'does not offend traditional notions of

fair play and substantial justice.'" Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801

(9th Cir. 2004), quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Two

forms of personal jurisdiction are available for application to a nonresident defendant: general

personal jurisdiction and specific personal jurisdiction.

A. General Personal Jurisdiction

"For general jurisdiction to exist over a nonresident defendant ... , the defendant must

engage in continuous and systematic general business contacts ... that approximate physical

presence in the forum state." Schwarzenegger, 374 F.3d at 801, quoting Helicopteros Nacionales

de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984) and Bancroft & Masters, Inc. v. Augusta

Nat'l, Inc., 223 F.3d 1082, 1087 (9th Cir. 2000). "This is an exacting standard, as it should be,

because a finding of general jurisdiction permits a defendant to be haled into court in the forum

state to answer for any of its activities anywhere in the world." Id, citing Brandv. Menlove



Dodge, 796 F.2d 1070, 1073 (9th Cir. 1986).

It is plaintiffs' burden to establish general personal jurisdiction over each defendant. See

Boschello, 539 F.3d at 1015. Each defendant's contacts with Oregon must be analyzed

separately, rather than collectively with the contacts ofthe other defendants.

1. KBR,Inc.

As noted above, KBR has two cognizable contacts with Oregon: its agent for service of

process and its workers' compensation policy, which is an omnibus policy covering 42 states. In

addition, KBR is alleged to have relied upon and profited from the services of Oregon National

Guard soldiers in Iraq.

These contacts are insufficient to meet the exacting standard for general personal

jurisdiction. KBR's contacts with Oregon are, by a wide margin, too attenuated to approximate

"physical presence" in Oregon. Schll'arzenegger, 374 F.3d at 801. The court therefore lacks

general personal jurisdiction over KBR in Oregon.

2. Kellogg Brown & Root Services, Inc.

As noted above, KB&RS likewise has two cognizable contacts with Oregon: its agent for

service ofprocess and its registration to do business in Oregon.' In addition, KB&RS is alleged

to have relied upon and profited from the services of Oregon National Guard soldiers in Iraq.

KB&RS's contacts with Oregon, like those ofKBR and for similar reasons, are insufficient to

permit the exercise of general personal jurisdiction over it in this state.

3. KBR Technical Services, Inc.

As noted above, KBRTS has more extensive contacts with Oregon than either ofthe other

, Despite being registered to do so, KB&RS does not actually do business in Oregon.



American defendants. KBRTS has employed approximately 40 persons who list Oregon as their

state of permanent residence, although none of these persons is employed in Oregon. In addition,

KBRTS sent representatives to Oregon to negotiate a business proposition with the Oregon

National Guard, although the effort was ultimately unsuccessful. Finally, KBRTS is alleged to

have relied upon and profited from the services of Oregon National Guard soldiers in Iraq.

Even these contacts with Oregon are insufficiently "continuous and systematic" to give

rise to general personal jurisdiction. In Schwarzenegger, supra, the court described the

defendant's general business contacts with California as follows:

[Defendant] regularly purchases Asian-made automobiles that are imported byCalifornia entities. ... Some of [defendant]'s sales contracts with its automobilesuppliers include a choice-of-law provision specifYing California law. In addition,[defendant] regularly retains the services of a California-based direct-mailmarketing company; has hired a sales training company, incorporated inCalifornia, for consulting services; and maintains an Internet website accessibleby anyone capable of using the Internet, including people living in California.

Schwarzenegger, 374 F.3d at 801. These contacts with California are more extensive than

KBRTS's contacts with Oregon; nevertheless, the Ninth Circuit had no trouble concluding that

"[t]hese contacts fall well short of the 'continuous and systematic' contacts" requisite to permit

exercise of general personal jurisdiction, id., going so far as to characterize the argument that

these contacts could give rise to general jurisdiction as "quite implausibl[e]" on its face, id.

KBRTS is not subject to general personal jurisdiction in Oregon.

4. Overseas Administration Services, Ltd., and Sel'vice EmployeesIntcl'Ilational, Inc.

As noted above, OAS and SEI have virtually no general business contacts with Oregon,

the only such contacts being a velY limited number of current and former employees of the two

Page II - FINDINGS AND RECOMMENDATION AND ORDER


companies who listed Oregon as their state ofpermanent residence, none of whom were ever

employed by either company in Oregon or, indeed, anywhere else in the United States. These

contacts are not sufficient to give rise to general personal jurisdiction in Oregon.

B. Specific Personal Jurisdiction

The courts ofthe Ninth Circuit apply a three-pronged test for determining whether the

exercise of specific personal jurisdiction over a nonresident defendant may be appropriate:

(1) The non-resident defendant must purposefully direct his activities orconsummate some transaction with the forum or resident thereof; or perform someact by which he purposefully avails himself of the privilege of conductingactivities in the forum, thereby invoking the benefits and protections of its laws;

(2) the claim must be one which arises out of or relates to the defendant'sforum-related activities; and

(3) the exercise ofjurisdiction must comport with fair play and substantial justice,i.e. it must be reasonable.

Schll'arzenegger, 374 F.3d at 802, quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987).

The plaintiff bears the burden of satisfYing the first two prongs of the test, whereupon the burden

shifts to the defendant to "'present a compelling case' that the exercise ofjurisdiction would not

be reasonable." Id., quoting Burger King Corp. v. Rudzell'icz, 471 U.S. 462,476-78 (1985).

In the context of cases that sound primarily in tort, courts have considered it sufficient to

satisfY the first prong of the test where the only contact a nonresident defendant had with the

forum state was "the 'purposeful direction' of aforeign act having effect in the forum state."

Haisten v. Grass Valley Medical Reimbursement Fund. Ltd., 784 F.2d 1392, 1397 (9th Cir. 1986)

(emphasis original), citing Calder v. Jones, 465 U.S. 783, 789 (1984). This '''effects' test requires

that the defendant allegedly have (l) committed an intentional act, (2) expressly aimed at the

Page 12 - FINDINGS AND RECOMMENDAnON AND ORDER


forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum

state." Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002). "The requirement is but a

test for determining the more fundamental issue ofwhether a 'defendant's conduct and connection

with the forum state are such that he should reasonably anticipate being haled into court there.'"

Id., quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). Under the

effects test, "jurisdiction may be exercised with a lesser showing Cifminimum contact than would

otherwise be required if considerations of reasonableness dictate." Haisten, 784 F.2d at 1397

(emphasis original), citing Burger King, 471 U.S. at 476-477.

The second prong of the test requires that the plaintiffs claim arise out of the nonresident

defendant's forum-related activities. See Boschetto, 539 F.3d at 1016.

At the third prong of the test, the burden shifts to the defendant to present a "compelling

case" to rebut the presumption that the exercise of specific personal jurisdiction would be

reasonable. See id.

In determining reasonableness, th[e] [COUtts of the Ninth] circuit examiner] sevenfactors: the extent ofpurposeful inteljection; the burden on the defendant todefend the suit in the chosen forum; the extent of conflict with the sovereignty ofthe defendant's state; the forum state's interest in the dispute; the most efficientforum for judicial resolution of the dispute; the importance of the chosen forum tothe plaintiffs interest in convenient and effective relief; and the existence of analternative forum.

Shute v. Carnival Cruise Lines, 897 F.2d 377, 386 (9th Cir. 1990), citing Federal Deposit Ins.

Corp. v. British-American Ins. Co., Ltd., 828 F.2d 1439, 1442 (9th Cir. 1987). "The court[s]

must balance the seven factors to determine whether the exercise ofjurisdiction would be

reasonable." Id., citing British-American, 828 F.2d at 1442.

As to the purposeful direction prong of the three-pronged test for determining specific



personal jurisdiction, I agree with defendants' argument that they did not purposefully direct their

activities toward Oregon when they contacted the Doha Operations Center to request militmy

assistance, even though they may have done so with the knowledge or expectation that their

requests would be answered by members of the Oregon National Guard. Nothing in the record

suggests that defendants would have canceled or modified any such request had they learned that

the Oregon National Guardsmen assigned to Doha had been replaced by soldiers from states

other than Oregon. The fact that it was Oregon National Guardsmen who responded to

defendants' requests was essentially a fortuity.

However, plaintiffs allege that each defendant, with knowledge that plaintiffs were

Oregon National Guardsmen from Oregon, intentionally misrepresented conditions at the Qarmat

Ali site to the plaintiffs and intentionally withheld from them the information that the site was

contaminated with hexavalent chromium. Such affirmative, calculated misrepresentation clearly

constitutes an intentional act, satisfYing the first prong ofthe so-called "effects" test for

determining whether purposeful direction has taken place. Given the allegation that defendants

knew the persons to whom they intentionally directed their misrepresentations and failures to

disclose were soldiers of the Oregon National Guard, plaintiffs have further satisfied their burden

with respect to the second prong of the effects test, that the intentional act was expressly aimed at

Oregon. See, e.g., Dole Food Co. v. Watts, 303 FJd 1104, 1111 (9th Cir. 2002) ("the 'express

aiming' requirement. .. is satisfied when 'the defendant is alleged to have engaged in wrongful

conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum state"'),

quoting Bancroft & Masters, Inc. v. Augusta Nat'l, Inc., 223 F.3d 1082, 1087 (9th Cir. 2000).

Finally, defendants' alleged misrepresentations and failures to disclose caused harm to plaintiffs,



whom defendants are alleged to have known were residents of Oregon. Defendants' alleged

knowledge that plaintiffs were all residents of Oregon, and therefore that any long-term harm

suffered by plaintiffs would be felt in Oregon, satisfies the third prong of the effects test.

Satisfaction of all three prongs of the effects test satisfies the first prong of the test for specific

personal jurisdiction.2

As to the second prong of the specific personal jurisdiction test, whether the claim arises

out of the defendants' alleged forum-directed activities, it is clear that plaintiffs' fraud claim

arises out of defendants' alleged intentional misrepresentations and failures to disclose. But for

those misrepresentations and failures, plaintiffs would not have served at Qarmat Ali without

adequate protection against the hazardous chemicals stored at the site, and would not have

suffered their complained-of injuries. Plaintiffs have met their burden to establish the second

prong of the specific personal jurisdiction test, creating a presumption that exercise of specific

personal jurisdiction would be proper.

In connection with the reasonableness prong of the specific personal jurisdiction test, the

burden shifts to the defendants to present a compelling case that it would not comport with fair

play and substantial justice to hale the defendants into court in Oregon in connection with their

alleged misrepresentations and failures to disclose. Defendants have not met and cannot meet

this burden. Any person who intentionally permits a group ofpersons from a particular state to

2 Support for the conclusion that defendants intentionally directed their activities intoOregon may also be found in Brainerd v. Governors ofUniversity ofAlberta, 873 F.2d 1257 (9thCir. 1989). In Brainerd, a Canada resident was found to have intentionally directed anintentional tort into Arizona when he allegedly intentionally defamed an Arizona resident in thecourse of a telephone call initiated by a third party employed by the University of Arizona.See Brainerd, 873 F.2d 1259-1260. The Ninth Circuit found that this action satisfied thepurposeful direction requirement both directly and under the effects test. See id



become seriollsly poisoned may quite reasonably anticipate being subjected to legal action in the

victims' state of residence.

The foregoing conclusion is supported by analysis of the factors the courts of the Ninth

Circuit employ in determining whether the exercise of specific personal jurisdiction is

reasonable. By intentionally putting Oregon National Guardsmen - persons whose health and

safety directly impact Oregon's treasury as a matter of state law, see O.R.S. 396.366 - at risk of

harm, defendants purposefully injected themselves into this forum. The purposeful inteljection

factor therefore weighs heavily in favor of exercising jurisdiction.

By contrast, the factor treating the inconvenience ofthe proposed forum to the defendants

weighs at least mildly against exercise ofjurisdiction. An Oregon forum would require all

defendants to travel and to transmit evidence to Oregon, a forum in which no defendant has any

physical presence. However, because there is no forum that could entirely mitigate defendants'

inconvenience, since the defendants are not all located in any single forum, this factor cannot be

accorded dispositive weight in the reasonableness analysis.

The interference with sovereignty factor is immaterial here.

As to the forum state's interest, Oregon has a clear interest in protecting the health and

safety not merely of its citizens, but also of its employees, the Guardsmen, whose health concerns

are specifically addressed in Oregon legislation, see O.R.S. 396.366. This factor therefore

weighs heavily in favor of exercising jurisdiction.

As to the efficiency ofthe proposed forum, it is clear that not all evidence is located in

Oregon. However, because all but one of the plaintiffs and much, if not all, of the plaintiffs'

evidence, including their medicall'ecords, are located in Oregon, and because no single forum



contains all of the defendants or all of the defendants' evidence, an Oregon forum is likely

somewhat more efficient than any other, assuming arguendo that any other is available. This

factor therefore weighs slightly in favor of exercising jurisdiction here.

Because Oregon is the place of residence of all but one ofthe plaintiffs,' Oregon is clearly

the forum most convenient to plaintiffs. No other forum has been shown to be more capable than

this one of providing the plaintiffs with effective relief. The sixth factor therefore weighs in

favor of exercising jurisdiction in Oregon.

Finally, as to the availability of an alternative forum, plaintiffs are correct that it is

unclear whether any alternative forum is available in which all defendants would be subject to

suit. This factor therefore weighs in favor of exercising jurisdiction here.

For the foregoing reasons, the court may properly exercise specific personal jurisdiction

over each defendant, based on the allegations that each defendant intentionally withheld fro111 the

plaintiffs, whom defendants knew to be Oregon residents, the information that Qannat Ali was

contaminated with hexavalent chromium. The motion to dismiss for lack ofpersonal jurisdiction

is therefore denied.

II. Motion to Transfer fOl' Lack of Venue

Defendants' sole argument in favor of transfer for lack of venue is that venue is improper

in Oregon because the court lacks personal jurisdiction over the defendants here. However,

venue is proper where a defendant is subject to the exercise ofpersonal jurisdiction over it. See

28 U.S.C. § 1391(a). Since I conclude that the court has specific personal jurisdiction over the

, Plaintiff Mueller resides in Vancouver, Washington. All other plaintiffs are Oregonresidents.



defendants, I likewise conclude that venue is proper in this district. The alternative motion to

transfer for lack ofvenue is therefore denied.

CONCLUSION

For the reasons set forth above, defendants' motion (#21) to dismiss for lack ofpersonal

jurisdiction and alternate motion to transfer for lack of venue is denied.

Dated this 9th day of April, 2010.

Honorable Paul PapaUnited States Magistrate Judge



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